New IBA Guidelines for Drafting International Arbitration Clauses approved by IBA Council
On 7 October 2010, at the IBA Annual Conference in Vancouver, the IBA Council approved the new IBA Guidelines for Drafting International Arbitration Clauses.
The Guidelines are the result of a project initiated by the IBA Arbitration Committee in 2008 in order to assist parties and their counsel to achieve effective arbitration clauses which unambiguously embody the parties’ wishes. They reflect the Committee’s understanding of the best current international practices and provide both a framework and detailed provisions for drafters of international arbitration clauses.
The Guidelines tackle some of the more complex drafting issues which arise when an arbitration agreement goes beyond the typical bipartite arrangement and involves multiple parties and/or a range of related contractual agreements. They address not only basic guidelines on the essential elements of an arbitration clause, but also in subsequent sections those features which are considered 'optional extras', as well as multi-tier dispute resolution clauses, multi-party arbitration clauses and arbitration clauses appropriate for transactions involving multiple contracts. A statement of each guideline is provided, supplemented with explanatory comments and including specific recommended clauses.
Differing from other rules and guidelines previously issued by the Arbitration Committee, the IBA Arbitration Clause Guidelines have been developed in order to assist not only arbitration specialists but, particularly, in-house counsel and business lawyers ordinarily involved in contract drafting but unfamiliar with the complexities of arbitration.
The Guidelines were drafted by members of a special Task Force created for by the IBA Arbitration Committee. Members of the Task Force were Paul Friedland (Chair, USA), R Doak Bishop (USA), Karim Hafez (Egypt), Adriano Juca (Brazil), Carole Malinvaud (France), Sundaresh Menon (Singapore), Jean-Claude Najar (France), William Park (USA), Anne-Véronique Schlaepfer (Switzerland), Eduardo Silva Romero (Colombia/France), Stephen E Smith (US), Matthew Weineger (UK) and Damien Nyer (Secretary, USA).
The Guidelines were circulated for public consultation early this year. Opinions were requested by mail to all committee members and to the main arbitral institutions. In addition, the public consultation was announced in different publications and specialised forums.
This consultation process was a great success. Arbitral institutions, well known arbitrators, academics and practitioners from all over the world provided useful comments and suggestions. The comments received were duly considered and, where appropriate, incorporated in the final text.
The Arbitration Committee is very proud to announce the issuance of these new Guidelines and expects them to be of great assistance to all those involved in drafting international arbitration clauses.
To read the new IBA Guidelines for Drafting International Arbitration Clauses